Supreme Court skeptical of Hawaii’s law restricting gun carrying on private properties

Gun control advocates went to the Supreme Court on Tuesday to defend Hawaii’s law limiting the right to carry firearms on some private property, and found themselves in the uncomfortable position of justifying it by citing a racist Civil War-era law aimed at curtailing freed slaves’ gun rights.

“Quite an astonishing claim,” said Justice Neil M. Gorsuch, while Justice Samuel A. Alito Jr. called it the “height of irony.”

They and the court’s other Republican appointees signaled a tough road ahead for Hawaii’s law, which says that on private property that is open to the public — such as a store or restaurant — even a licensed gun owner must have explicit permission to carry a firearm.

Hawaii’s lawyer, Neal Katyal, said the state enacted the law to protect those private property owners who, until recently, never would have imagined someone would be able to carry a gun onto their property.

He said other states can adopt different rules but the justices shouldn’t strike down Hawaii’s decision.

“The Constitution permits this type of democratic flexibility and states functioning as laboratories,” Mr. Katyal said.

Several justices, though, said no similar restriction would be allowed for a First Amendment right.

“You’re just relegating the Second Amendment to second-class status,” said Justice Alito, a George W. Bush appointee.

But the court’s Democratic appointees viewed the issue as one of property rights, not guns.

“Is there a constitutional right to enter private property with a gun without an owner’s express or implicit consent? The answer has to be simply no,” said Justice Sonia Sotomayor, an Obama appointee.

“You don’t have a general right to carry on private property,” added Justice Ketanji Brown Jackson, a Biden appointee.

“It’s a right to carry in public, your honor, not a right to carry on public property,” countered Alan A. Beck, the lawyer arguing the case for gun owners.

The case is the latest to test the boundaries of Second Amendment rights, following in a string of rulings that have vastly expanded the understanding of the right but have recognized some limits.

In particular, the 2022 Bruen decision found that for gun control laws must align with the country’s history and tradition of firearms restrictions to survive constitutional scrutiny.

As part of its evidence, Hawaii cited an 1865 Louisiana law, part of the so-called Black Codes, that forbade carrying guns on plantations without explicit consent of the owner. It was aimed at freed slaves.

Justice Jackson, one of two Black members of the high court, said that as repugnant as the law was, it did seem to back Hawaii’s argument by showing a tradition of denying gun rights on private property absent explicit consent.

“The fact that the Black Codes were at some later point determined to be unconstitutional doesn’t seem to me to be relevant,” she said. “They were part of the history and tradition of the country.”

Mr. Katyal agreed. He said whatever the country thinks now, Louisiana was readmitted to the Union in 1868 following the Civil War by a Congress that specifically allowed the plantation gun law to continue.

Justice Sotomayor said most Hawaiians oppose carrying guns and so most shop owners never had to confront the issue of carrying without explicit permission. She suggested that, given local culture, the law could survive constitutional scrutiny.

But Chief Justice John G. Roberts Jr., a George W. Bush appointee, posited the situation of a gas station on the side of the road. He wondered about the feasibility of a law that presumptively made a crime out of a driver pulling in for gas with his weapon in his vehicle.

The gun owners lost their case in lower courts. And the Department of Justice sided with the gun owners in the Supreme Court.

“Hawaii can show no tradition behind its law,” said Principal Deputy Solicitor General Sarah M. Harris. “From the founding, the tradition has been opening the property to the public authorizes carrying.”

The case is Wolford v. Lopez. Jason Wolford and Alison Wolford are members of the Hawaii Firearms Coalition, and Anne E. Lopez is Hawaii’s attorney general.

A decision is expected by the end of June.